"On April 17, 1982, well in advance of the required 60 days prior to the contract's termination date, the Union gave Purex notice that it desired to renegotiate the contract. The parties negotiated without success, and on June 24, the Union delivered a letter to Purex which purported to be the five days' notice of termination required by Article 2, Section 3 of the contract. On July 6, the Union sent a letter to Purex rejecting Purex's final contract proposal. The letter went on to say 'I (a Union official) must assume you (Purex) are not willing to negotiate and Local 618 will act accordingly.' Thereafter, the Union commenced strike activities on July 14.
"Purex immediately sought a temporary restraining order and a preliminary injunction against the strike from the District Court. Purex argued that the Union's notice of contract termination was defective, and therefore the contract, including the no-strike clause, remained in effect when the strike began. Under Purex's interpretation of the duration clause, the five-day notice may not be given until after the contract's termination date, and accordingly the Union's June 24th letter was premature. The District Court denied the temporary restraining order on July 15, and, following a hearing on July 16, denied injunctive relief as well." 705 F.2d at 275-76.
As in the case at hand, the controversy in Purex involved a dispute over the duration of the old Collective Bargaining Agreement, and a dispute over the content of whatever new agreement would succeed the old agreement. The 8th Circuit, looking to Buffalo Forge and the Jacksonville case, noted that the very purpose of the Boys Markets exception would be disserved by granting a Boys Markets injunction against Local 618. The Court stated that "The Supreme Court's opinions in Buffalo Forge and Jacksonville Bulk Terminals analyze the Boys Markets exception as a means for effectuating the national policy favoring agreements to arbitrate, and not as an enforcement mechanism for no-strike clauses. Both Buffalo Forge and Jacksonville Bulk Terminals distinguish between strikes where the underlying dispute is arbitrable and those where the legality of the strike itself is arbitrable. Only in the former category are strikes subject to injunction, because only there does the strike represent a breach of the Union's agreement to arbitrate." 705 F.2d at 276.
I agree with the 8th Circuit in Purex. Boys Markets and its progeny do not give the Courts a blanket power to enjoin strikes during the life of a Collective Bargaining Agreement. Rather, they give Courts power to enjoin strikes when arbitration offers an agreed to, alternative means of restoring harmony to the employer-employee relationship. That is not the case here. Were an injunction to issue in the case at hand, it would not resolve the bedrock dispute between Fein and Local 810 regarding future terms of employment. Therefore, this case does not fall within the Boys Markets exception to Section 4 of the Norris-LaGuardia Act. This Court is without jurisdiction to enjoin the job action which Local 810 has begun against Fein. Given this conclusion, I need not consider further whether Fein's request that the Local 810 job action be enjoined merits preliminary injunctive relief. See Purex, 705 F.2d at 277. See also U.S. v. Price, 688 F.2d 204, 211 (3d Cir.1982).
I now turn to Fein's request for an injunction compelling the parties to arbitrate the ancillary dispute over the duration of the February 21, 1983 Collective Bargaining Agreement. Section 301(a) provides federal courts with jurisdiction to grant such relief, and Section 4 of the Norris-LaGuardia Act does not revoke that jurisdiction.
Since the time of the Steelworkers Trilogy in 1960, the U.S. Supreme Court has instructed that the interpretation of arbitration clauses in Collective Bargaining Agreements is to be guided by a strong presumption favoring arbitrability of disputes arising under the agreement.
In Steelworkers v. Warrior & Gulf, 363 U.S. 574, 80 S. Ct. 1347, 4 L. Ed. 2d 1409 (1960), the second of the three cases comprising the Steelworkers Trilogy, the Court stated that, "In the absence of any express provision excluding the particular grievance from arbitration, we think only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail, particularly where . . . the arbitration clause (is) quite broad." 363 U.S. 584-85, 80 S. Ct. at 1354. Accord, AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 106 S. Ct. 1415, 89 L. Ed. 2d 648 (1986).
In a decision following Warrior & Gulf, the 3d Circuit added its own gloss to the arguments favoring the presumption of arbitrability:
"There are strong reasons supporting the federal policy in favor of arbitration. First, arbitrators are more competent than courts to interpret labor contracts and to resolve the problems of labor-management relations. United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S. Ct. 1358, 4 L. Ed. 2d 1424 (1960). Second, the process of arbitration contributes to the maintenance of labor peace. United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 568, 80 S. Ct. 1343, 1346, 4 L. Ed. 2d 1403 (1960). Third, ordering arbitration is essential in effectuating the parties' contractual intent to settle disputes through arbitration. Fourth, a suit for damages rather than an injunction ordering arbitration 'might not repair the harm done by the strike, and might exacerbate labor-management strife.' Note, Labor Injunction, Boys Markets, and the Presumption of Arbitrability, 85 Harv.L.Rev. at 638, citing, Boys Markets, Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235, 248, 90 S. Ct. 1583 , 26 L. Ed. 2d 199 (1970)." Avco Corp. v. Local Union #787, 459 F.2d 968, 973 (3d Cir.1972).
I note additionally that parties have been known to agree to submit the issue of Collective Bargaining Agreement duration to arbitration. Moldovan v. The Great Atlantic & Pacific Tea Co., Inc., 790 F.2d 894 (3d Cir.1986). Furthermore, the 3d Circuit has enforced agreements to arbitrate disputes concerning contract duration. Wilkes-Barre Publishing Co. v. Local 120, 647 F.2d 372 (3d Cir.1981); Becker Autoradio v. Becker Autoradiowerk GmbH, 585 F.2d 39 (3d Cir.1978). Nor is inconsistent to ask an arbitrator to rule on whether the contract which grants him jurisdiction to decide disputes has already ended. The obligation to arbitrate contract disputes may outlast the contract itself. Nolde Bros., Inc. v. Local No. 358, 430 U.S. 243, 97 S. Ct. 1067, 51 L. Ed. 2d 300 (1977).
In the case at hand, the Collective Bargaining Agreement contains a provision covering termination of the agreement. That provision states in full: "Article XXXV. Termination of Agreement. "The term of this Agreement shall commence on February 21, 1983, and expire on February 20, 1986, at 12:00 midnight. Negotiations for a new Agreement shall commence sixty (60) days prior to the expiration hereof." Collective Bargaining Agreement at Page 24. The provision is silent as to whether the agreement may be extended, and if so, who is to decide when the extensions lapse and the agreement finally terminates.
In other provisions, however, the agreement sets out a broad arbitration clause. First, the agreement states: "Article X. Prohibition of Strikes and Lockouts . . . B. The parties recognize and agree that the grievance and arbitration procedures set forth herein shall be the sole and exclusive means for the determination of all disputes, complaints, controversies, claims or grievances whatsoever, including a claim based upon an alleged breach of this Agreement. This provision shall be a complete defense to, and also grounds for a stay of any action or proceeding instituted contrary to this Agreement." Collective Bargaining Agreement at Page 7-8. Second, the agreement states: "Article XVIII. Arbitration.
"Should any dispute arise under the terms of this Agreement, the same shall be settled in the following manner:
"1. . . . .
"4. Notwithstanding the above procedure, the Union may, in the first instance and without reducing the grievance to writing, take the grievance up directly with the Employer.
"5. The parties agree that arbitration shall be conducted by an arbitrator selected by the New Jersey State Board of Mediation." Collective Bargaining Agreement at Pages 14-15.
Given these broad provisions, calling for arbitration of "all disputes . . . whatsoever" regarding the agreement, and the presumption of arbitrability governing interpretations of arbitration clauses in Collective Bargaining Agreements, I find that the parties have agreed to arbitrate the issue of termination of the agreement. I shall, therefore, grant Fein's request for an injunction compelling the parties to arbitrate the issue of when, exactly, the 1983 agreement has ended or will end. As a result of this conclusion, I need not consider further whether Fein's request for an arbitration order merits preliminary injunctive relief. See U.S. v. Price, cited supra.
I wish to note precisely what issues this opinion does not decide. It does not decide the issue of when the 1983 Collective Bargaining Agreement terminates. It does not decide Fein's claims for damages against Local 810. It does not decide any counterclaims brought by Local 810. At this point in time I deny Fein's request for a Boys Markets injunction against the job action instituted by Local 810, and grant Fein's request for an injunction compelling arbitration of the issue of contract duration.
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